In this products liability case we must review the action of the trial court in sustaining a motion by the defendant, The Chrysler Corporation (appellee), for a directed verdict. The plaintiff, Necaise (appellant),1 received disabling injuries when a Chrysler-built Dodge pick-up truck which he was driving overturned on a "test drive." Motion for directed verdict was made when the plaintiff rested, but the court reserved its ruling until all the evidence was presented. This is a diversity case which arose in the state of Mississippi.

The plaintiff bases his case on breach of warranty and negligence. In defense Chrysler relies on the following "points": (1) there was insufficient proof that the truck was negligently manufactured "so that such negligence proximately caused or contributed to the alleged injury and damage"; (2) there was lack of privity of contract between the plaintiff and the defendant; and (3) the alleged defect was readily visible to the plaintiff "whose job was the testing and checking of the vehicle in question." In granting the defendant's motion for a directed verdict, the trial court stated:

"Its [sic] obvious to me that these `U' bolts according to the record before me were not tightened and had never been tightened by anybody. They were loose and too loose but I don't believe there is any substantial evidence sufficient to justidy [sic] a jury to conjecture and try and see whether or not they can find any liability in the case. I just don't think that there is any substantial evidence of any cause or connection [sic] between that piece of negligence on somebody's part if it is shown in this record that such negligence were that of the defendant in the case. For the record I will go on record as saying that I don't, however, regard the looseness of those bolts as being a patent defect in the assembly of this vehicle. I think it was a latent defect and one that the average member of the general public wouldn't be expected or called on to detect, but that in my opinion doesn't have any controlling effect or bearing here. The law of Mississippi is and for sometime has been to the effect that there must be privity of relationship between an injured party and a manufacturer whom he sues for a defect in a piece of equipment."

The truck in question was delivered to the Navy Department at Gulfport, Mississippi. At the time of the accident the plaintiff was test-driving the truck pursuant to his duties as an employee of the Navy Department. When he was instructed to test drive the vehicle, the speedometer registered three miles. At the time of the accident it had been driven approximately ten or fifteen miles.2 According to Necaise he was driving the truck alone on the test strip and when he applied the brakes the steering wheel pulled to the left, the truck started skidding, and the vehicle turned over three or four times causing the injuries alleged. At the trial he proved that the "U" bolts which connect the front axle and the springs and secure them to the frame and body of the truck had not been tightened and secured on the left side.3 He testified that it was his opinion that the loose "U" bolts allowed the left side of the front axle to slip backwards when he applied the brakes and that such condition caused the steering apparatus to pull to the left and the truck to skid and turn over.4 As usual the evidence was in sharp conflict. Chrysler employees and witnesses testified that "looseness of the `U' bolts" would not have caused the accident. One witness testified that he had test-driven a similar vehicle with loosened "U" bolts under adverse conditions over rough terrain with no ill effects.5

Chrysler manufactured the truck, sold it to Chrysler Sales Corporation and gave a warranty as to fitness which was extended to the government through the Navy Department. There was evidence that the Chrysler Corporation made a number of warranty reimbursements on other vehicles involved in the same order by which the truck in question was sold and delivered. A claim was made by the Navy on this vehicle but it was not known whether any monetary adjustment or reimbursement was made on the claim. Finally, in its Post-Submission Brief the defendant concedes that it might be reasonable to infer that the "U" bolts were loose because the nuts were found to be loose or missing.6

The defendant further concedes that the plaintiff's evidence established that the nuts on the "U" bolts were loose and that one nut was missing; that there was circumstantial evidence from which a jury might reasonably infer that this defect was attributable to negligence [on the part of defendant] in the manufacturing process. But, says the defendant, even if such conditions were a possible or probable cause of the plaintiff's inability to control the vehicle, such fact "is capable of proof by direct and positive evidence from one familiar with the mechanics of such vehicles," and that the plaintiff wholly failed to make such direct and positive proof. The defendant therefore concludes that the law presumes, in the absence of such direct and positive proof, that the evidence if presented would in fact destroy the plaintiff's case.7

Directed verdicts should be granted sparingly. The right to a trial by jury is a basic constitutional right reserved by the Seventh Amendment and that amendment applies to diversity cases. Revlon, Inc. v. Buchanan, (5th Cir. 1959) 271 F.2d 795, 800, 81 A.L.R. 2d 222. We recently had occasion to state the rule as to directed verdicts in Wells v. Warren Company (5th Cir. 1964), 328 F.2d 666:

"The law with respect to directed verdicts is well-settled. The Court should not grant a motion for a directed verdict if there is substantial credible evidence which would support a verdict in favor of the party against whom the motion is made. It is the function of the jury, not the court, to weigh and evaluate the evidence on both sides of a contested question. If there is a conflict in the evidence, the jury must resolve such conflict. If legitimate, contrary inferences may be drawn from the evidence, the choice of the proper deduction is also for the jury. A mere scintilla of evidence is not sufficient. There must be a conflict in substantial evidence. Substantial evidence is evidence of such quality, character and weight as would justify a reasonable person in drawing the inference of fact that is sought to be sustained. If the state of the evidence is such that it presents no conflict, nevertheless, if reasonable minds may draw conflicting or contrary inferences from the same evidence requiring different verdicts, it is for the jury to determine which is the correct inference. For the purpose of this opinion, we must accept as true the credible evidence adduced by the plaintiff Wells. Murray v. Pasotex Pipeline Co., 5 Cir. 1947, 161 F.2d 5; Baltimore & O. R. Co. v. Postom, 1949, 85 U.S.App.D.C. 207, 177 F.2d 53; Atlantic Greyhound Corp. v. Crowder, 5 Cir. 1949, 177 F.2d 633; Audirsch, et al. v. Tex. & Pac. Ry. Co., 5 Cir. 1952, 195 F.2d 629; Swift & Co. v. Morgan & Sturdivant, 5 Cir. 1954, 214 F.2d 115, 49 A.L.R. 2d 924; Texas Co. v. Savoie, 5 Cir. 1957, 240 F.2d 674. Such rules are not in conflict with the law of Florida. Southern Express Co. v. Williamson, 1913, 66 Fla. 286, 63 So. 433, L.R.A.1916C, 1208."

See also Lindeman v. Textron, Incorporated, (2nd Cir. 1956) 229 F.2d 273; Atlantic Coast Line Railroad Company v. Futch, (5th Cir. 1958) 263 F.2d 701; Clarkson v. Hertz Corporation, (5th Cir. 1959) 266 F.2d 948; Ford Motor Company v. Zahn, (8th Cir. 1959) 265 F.2d 729, and Blitzstein v. Ford Motor Company, (5th Cir. 1961) 288 F.2d 738. The law of Mississippi is substantially the same. Ballenger v. Vicksburg Hardwood Co. (1960), 238 Miss. 654, 119 So. 2d 778.8 When the dispositive issue is causation, the above stated principle is especially applicable. In the recent case of Mississippi Power & Light Company v. Walters (Miss.1963), 158 So. 2d 2, the Mississippi Supreme Court stated the rule as follows:

"Moreover, when reasonable minds might differ on the matter, the question of what is the proximate cause of an injury is usually a question for the jury, * * *.

* * * * * *

"There may be more than one proximate cause of an injury, * * * and if appellant's negligence proximately contributed to the injury, * * * then appellant is liable even though its negligence was not the sole proximate cause thereof." (Emphasis added.)9

Applying these principles outlined to the case under consideration, we believe the plaintiff presented sufficient evidence to support a jury verdict determining that the defect in question at least contributed to the injury. Of course we make no suggestion as to what the jury might have decided, or should decide, or what we would have decided from all the evidence. We only determine that the jury should have been given an opportunity to make a decision one way or the other. On this aspect of the case, we conclude that the court erred in taking the case from the jury.

It is difficult to determine whether the trial judge meant to find that there was not sufficient evidence of negligence presented to make a jury case, or whether having found a lack of causation, he looked no further. At any rate, it is our opinion that sufficient evidence was adduced to take the case to the jury under the res ipsa loquitur doctrine. In Johnson v. Coca-Cola Bottling Co. (1960), 239 Miss. 759, 125 So. 2d 537, the Mississippi Supreme Court had occasion to say:

"It has been repeatedly held that the `exclusive control' mentioned in the foregoing definition means that the manufacturer or other defendant sought to be charged with negligence under the doctrine of res ipsa loquitur, is only required to have control of the instrumentality at the time of the negligent act which gives rise to the injury and not necessarily at the time of the accident to the plaintiff."10

Moreover, we reject the argument of Chrysler that the defect was patent and agree with the trial court that "it was a latent defect and one that the average member of the general public wouldn't be expected or called on to detect." The evidence does not show that Necaise's duties under his employment with the Navy required him to inspect the "U" bolts. In any event we believe it would be an intolerable burden to place on the user of a new vehicle to require him to inspect the numerous bolts and nuts which hold the vehicle together. If so, the manufacturer should give some cautious warning to that effect. To hold otherwise would be a promiscuous fallacy.

Under the requirements of the Erie11 doctrine, we must seek to make "an enlightened guess" as to the law of Mississippi on the question of privity of contract,12 taking our guidance and illumination from the Mississippi cases on the subject. Chrysler relies on its warranty which provides for the rather feeble and delusive right of replacement of defective parts at the factory, and even that right is to be limited strictly to the original purchaser. As to Necaise, Chrysler seeks to shelter itself with complete immunity from liability because of a lack of privity.13

The Mississippi case of Ford Motor Co. v. Myers (1928), 151 Miss. 73, 117 So. 362, and earlier Mississippi cases, held that there was no liability where the injured party, a remote vendee, could not establish privity with the defendant manufacturer of the defective instrumentality. The plaintiff points to a much later case, E. I. Du Pont De Nemours & Co. v. Ladner (1954), 221 Miss. 378, 73 So. 2d 249, and contends that it impliedly overrules the Ford case.14 In response to the plaintiff's contention as to the meaning of the Du Pont case, Chrysler relies heavily on the more recent decision of Harrist v. Spencer-Harris Tool Co. (1962), 244 Miss. 84, 140 So. 2d 558, wherein the court noted its keen awareness of the dictum in Du Pont and its consciousness of the suggestion of Judge Magruder in the case of Mason v. American Emery Wheel Works (1st Cir. 1957), 241 F.2d 906. The Harrist case fails to furnish us as much illumination as it seems to furnish Chrysler because, regardless of what else the court may have said, it finally concluded:

"We find, however, that it is not necessary to pass upon or disturb the former opinions of this Court in order to reach a decision in this case." (Emphasis added.)

Thus it seems to us that we are left with the dictum in Du Pont.

We are not critical of the decision of the Mississippi Supreme Court in Ford rendered thirty-six years ago. When that decision was rendered the often mentioned "population explosion" was not a concept. At that time the age of limitless gadgets and appliances, currently used by almost everyone, had not been born. And now, thirty-six years later, mechanical devices and appliances touch the very vitals of society. As a result of enticing advertisements, a constant barrage of reassurances, and a continuous flow of attractive invitations to purchase, millions of people acquire and live close to moving machinery almost constantly. The two-car family is commonplace and there are literally millions of motor vehicles on the thoroughfares. Even with careful handling and operation, the record as to personal injuries is bad. Mechanical defects resulting from negligence cannot be tolerated. We do not speak of perfection, we only condemn negligence. Manufacturers of such powerful machinery are not insurers, but they should not be permitted to escape liability when they place on the market a defective motor vehicle, if the defect could have been avoided by the use of reasonable care. Since the famous case of MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, the immunity of manufacturers has been undermined and eroded. Numerous exceptions have been established by the development of the law. To mention only a few, many courts no longer require privity when recovery is sought for negligence, instrumentalities that are inherently and imminently dangerous have been removed from the operation of the doctrine of no liability, and immunity based on privity is not allowed where the injury comes from food products. At this late date most courts will not permit manufacturers to hide behind a contractual carapace shielding them from liability for harm caused by powerful and swift, but defective machinery. The citadel of immunity and privity has crumbled to some extent before the transcendent importance of life and health, and those principles of tort law designed to elevate such values.

A strong argument could be made on behalf of Necaise to exempt him from the strict legal requirements of technical privity. In a broad general sense, the Navy is a department or agency of the federal government. It, like other agencies or governmental departments, can function only through agents, servants, or employees. Everyone is aware of this fact and so was Chrysler at the time of the sale in question.15 Current authorities are reluctant to insist upon the strict requirements of contractual privity in cases where the manufacturer of a chattel fails to exercise reasonable care in its manufacture and neglects to recognize as he should, that a dangerous risk is involved, which may bring substantial injury to those whom the manufacturer should reasonably expect to use the chattel, or be in the vicinity of its probable use.16 In analyzing a negligence claim arising in the State of Alabama where the law is clear to the effect that there can be no action on implied warranty in the absence of privity of contract, this Court in Blitzstein v. Ford Motor Company (5th Cir. 1961), 288 F.2d 738, approved the following statement by the trial court:

"However, in turning to the facts in this case, I think that we deal with the general proposition that one who supplied directly or through a third party a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier knows, or from facts known to him should realize that the chattel is or likely to be dangerous for the use for which it is supplied and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and fails to exercise reasonable care to inform them of its dangerous condition, or of the facts which make it likely to be so."

To the same effect is our recent case of Ford Motor Co. v. Mathis (5th Cir. 1963), 322 F.2d 267:

"A brand new automobile bearing down a highway in the dark of night with a dimmer switch so defective as to plunge the driver in total, sudden, unpredicted darkness is indeed `dangerous' both to those in it and those within its range. On all tests it is `dangerous' and the risk of injury is an unreasonable one. A manufacturer or assembler who produces such an article as a result of negligent manufacture and sells it to one clearly within the range of persons expected to use it owes a legal duty to such person to use reasonable care to prevent injury to him. This duty is not created by contract, but arises from the general duty not to injure another through disregard for his safety. The standard of reasonable care is commensurate with the risk of danger involved should there be a defective product."

In following the mandate of Erie and considering specifically the law of Mississippi, we are aided in the determination of that law by two decisions which have considered the question before. Mason v. American Emery Wheel Works, supra, and Grey v. Hayes-Sammons Chemical Co. (5th Cir. 1962), 310 F.2d 291.17 In Mason the plaintiff was an employee of a subvendee of the defendant manufacturer and was injured by the disintegration of an emery wheel. The plaintiff, a Mississippi citizen, sued the corporate manufacturer in the U. S. District Court of Rhode Island for alleged injuries suffered when the wheel shattered while the plaintiff was using it on the job in the State of Mississippi. The District Court apparently concluded that the Du Pont decision had not changed the law as stated in Ford, and felt bound to apply the rule announced in the Ford decision. The District Court was overruled. The Court of Appeals of the First Circuit reasoned that the Supreme Court of Mississippi would not adhere to its strict rule in the Ford case in view of the later development of the law. Decisions that are out of step with the times may fall by attrition, erosion, undermining, and by inroads and exceptions to the harsh application of a technical rule.18 In Grey this Court followed the First Circuit, approved the reasoning in Mason, and concluded:

"It is, of course, unusual for a federal court to base an Erie decision on pure dicta in preference to a firm holding to the contrary. But we agree with the First Circuit. We must decide the case as if we were sitting as a Mississippi court. The court's strong language in E. I. du Pont de Nemours & Co. v. Ladner, the reference to recent authorities, and the court's consciousness of the fact that its discussion of the `modern doctrine' was not necessary to the decision, compel us to say that the Mississippi Supreme Court was putting litigants on notice that it no longer considered Ford Motor Co. v. Myers to be the law of Mississippi.

* * * * * *

"Under Mississippi law, as we read E. I. du Pont de Nemours & Co. v. Ladner and as the First Circuit held, privity is not required when the action is against the manufacturer for breach of his duty of due care."

In addition to the foregoing, there are ample reasons to distinguish the Mississippi Ford decision from the instant case. In Ford, the injured party was a remote vendee of the vehicle involved. Ownership and possession had been acquired through several purchasers. The Court did not rely upon the privity rule exclusively. The claimant in Ford contended that an automobile would become highly dangerous when put to the uses for which it was intended, because of defects in its manufacture, and that the manufacturer owed the public a duty irrespective of any contractual relation to use reasonable care in the manufacture of the vehicle. The Court stated:

"If an automobile was a dangerous instrumentality per se, there would be more reason to follow the position of appellees. But our court held, in Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258, that an automobile was not such an instrumentality."

The Vicksburg Gas case upon which the Court relied is now almost forty years old. The construction and horsepower of motor vehicles have changed. Highspeed expressways are in existence. The number of vehicles has multiplied beyond the 1925 imagination. Many types of vehicles, undreamed of forty years ago, have reached enormous numerical proportions. It is difficult for us to conclude that the Supreme Court of Mississippi would now hold that a defective automobile is not a dangerous instrumentality per se.19

The judgment is reversed and the case is remanded for a new trial in accordance with the views herein expressed.